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001085 " This cause was first assigned to the writer a year ago and an opinion affirming the jud@lllmt was handed down April 15. following. Then came petitions for rehearing by the plaintiff and others. eight in all. in whioh. by leave of oourt. the entire cause was re-presented. and this again by oral argument September 9. 1935. Thus while no rehearing has been !5l"anted the procedure followed has given counsel all the advantage thereof. In fact same of them were permitted to appear for the first time by briefs on these petitionh Perhaps few cases in this court have been more fully presented. or received more careful and extended consideration by the justioes. due largely to the extent and impor- tance of the interests involved and the number and standing of counsel repre- senting those interests. Our earlier labors were naturally devoted to a consider- ation of the theories advanoed in the briefs and the reasons urged in their sup- port. Our former opinion, hereby withdrawn, was thus written. Very reoently however, we have reached the conolusion that this judgment should be reversed for the foregoing reasons. reasons not assigned in any of the very able briefs or oral' arguments with Which we have been favored. save inferentially. where Messrs. Lee. Shaw & McCreery cite Greeley Transportation Co. v. People. 79 Colo. 3CY7. 314. 245 Pac. 720. and quote therefrom the follovringl '''That is expressed is exclusive only when it is creative. or in derogation of some existing law.' Lewis. Sutherland Stat. Const. (2~d) Ed.). Vol. 2. Sec. 491"The enactment of a law does not raise a presumption that it did not exist before.' (Id. Sec. 495." , . Such being the disposition of it. not only are defendants in error entitled to petition for rehearing. if so advised. but to argue that petition. and plaintiff in error and amici curiae to answer such argument. Such petition and briefs, if any, will be filed as by our rules provided and limited to this opinion. Such of !Ul1ici curiae as desire to appear further will join in a single brief. . " The judgment is accordingly reversed and the oause remanded for furf:her prooeedings in harmony herovlith. MR. JUSTICE BUTLER, conourring. For the reasons stated in the prinoipal opinion and in this opinion, I concur in the reversal of the jud@llllnt. On October 1. 1888, certain 1andm'rners c~~enced the construction of the reservoir involved in this suit. They completed the reservoir with dili- gence and S{>plied the water to the irrigation of growing crops on their land. They thereby made a valid appropriation of unappropriated water for irrigation purposes to the extent of 2.083 aore feat. and acquired a vested right of which they could not be deprived by subsequent appropriatiors or by any "Ct of the General Assembly. After making suoh appropriation, they incorporated a mutual reservoir company, the relator herein. and conveyed to it the reservoir and their water rights pertaining thereto. Thereafter. up to the present time, the water has been used by the stockholders for the irrigation of their lands. In 1907. in a general adjudioation prooeeding, the oourt deoreed to the oompany priority as of October 1. 1888. for 2.083 acre feet of water for the purpose of irrigation. The principal question for deoision is whether appropriators having appropriations of later date. in other words. junior appropriators--and there are many of them--are entitled to use for irrigation purposes the vlater there- tofore appropriated for irrigation purposes by the predecessors of the oompany -5-